After the September 11, 2001, terrorist attacks, the federal
government announced that it would preempt all state jurisdiction over
airport security. The federal government preempted state powers
without regard to balancing federal and state responsibilities so that
these responsibilities, and related costs, could be distributed across
federal, state, and local governments. To carry out this preemption,
the federal government recently reported that it will employ more than
47,000 federal recruits in the fight against terrorism as newly
trained security screeners. They are to begin working at 424 airports
nationwide.

These developments, and numerous others in the past, remind us that
there are no checks and balances available to the states over federal
power or over Congress itself in any area. However, in the history of
our country, it was not always this way. In the original design by the
Framers of the U.S. Constitution, there was an effective check on
Congress through the state legislatures' power to appoint (and remove)
United States Senators.

As such, the core of the problem with federal preemption lies in the
passage of the 17th Amendment which abrogated the state legislatures'
right to appoint United States Senators in favor of popular election
of those officials. This amendment created a fundamental structural
problem which, irrespective of the political party in office, or the
laws in effect at any one time, will result, over time, in expanding
federal control in every area. In my opinion, in addition to
preemption issues, it caused a failure in the federalist structure,
federal deficit spending, inappropriate federal mandates, and federal
control over a number of state institutions.

The amendment also caused a fundamental breakdown in campaign finance
issues with respect to United States Senators. As to United States
Senators, campaign finance reform, which has been a hot topic in
Congress, can be best achieved by repealing the 17th Amendment to the
United States Constitution. It should be readily apparent that United
States Senators, once appointed by the state legislature, would have
no need for campaign financing whatsoever.

The reason for the passage of the 17th Amendment should be stated. The
17th Amendment was passed because of a procedural problem in the
original concept and not because of a need to alter the balance of
power. The procedural problem consisted of frequent deadlocks when the
state legislatures were trying to select a senator. When deadlocked, a
state would go without representation in the Senate. For instance, in
the very first Congress, the State of New York went without
representation in the Senate for three months. Additionally, numerous
other problems resulted from the efforts to resolve individual
deadlocks. The problem of deadlocked legislatures continued unabated
from 1787 until 1913. The 17th amendment, calling for popular election
of senators, fixed the procedural problems, but also inappropriately
and unintentionally altered the balance of power. Instead, the 17th
Amendment should have fixed the procedural problems and left the
balance of power between the states and the federal government intact.

In my opinion, the 17th Amendment should be repealed. This would
reinstate the states' linkage to the federal political process and
would, thereby, have the effect of elevating the present status of the
state legislatures from that of lobbyists, to that of a partner in the
federal political process. The state legislatures would then have the
ability to decentralize power when appropriate. It would give state
legislatures direct influence over the selection of federal judges and
the jurisdiction of the federal judiciary and much greater ability to
modify the power of the federal judiciary. This structure would allow
the flow of power between the states and the federal government to ebb
and flow as the needs of our federal republic change. The existing
relationship, combined with the effect of the Supremacy Clause, is
guaranteed to concentrate power into the hands of the federal
government with little or no hope of return. The federalism issue
between the states and federal government is whether the states or the
federal government should be exercising a particular power. The impact
of the 17th Amendment upon that issue, and the states' present ability
to exercise the original power granted to them by the Framers of our
Constitution is clear. A proposed amendment to the U.S. Constitution,
designed to repeal the 17th Amendment and fix the procedural problems,
follows:

AN AMENDMENT TO REPEAL THE SEVENTEENTH AMENDMENT
AND RELINK THE STATES TO THE FEDERAL POLITICAL PROCESS.

SECTION ONE. The Seventeenth Article of Amendment to the Constitution
of the United States is hereby repealed.

SECTION TWO. The Senate of the United States shall be composed of two
Senators from each State, selected by the legislature of each State.
Each Senator shall serve a six-year term and may be re-appointed. Each
Senator shall have one vote.

SECTION THREE. Among the duties of each Senator is the primary duty to
represent the government of their State, and in particular, their
State's Legislature, in the Senate. For the purpose of maintaining
communications with its Senators, each State Legislature shall
establish a liaison committee and shall specify the duties,
procedures, and method of appointment of that committee. This
committee shall work with its United States Senators in evaluating the
impact of federal legislation on their State. All legislation proposed
by Congress, and all treaties proposed, shall be submitted to each
State's liaison committee.

SECTION FOUR. Senators are subject to removal by the State
Legislature. Removal of a Senator requires a majority of each House of
the State Legislature.

SECTION FIVE. Congress is precluded from enacting any legislation
affecting the senatorial selection process. Each State Legislature
shall enact rules and procedures, consistent with this amendment,
related to the selection and removal of Senators. A State Legislature
may implement a selection procedure whereby the State Legislature
selects a Senator by a plurality vote rather than a majority. If a
State Legislature fails to enact a selection procedure, then the State
Legislature shall sit as a single body and shall select a Senator by a
plurality vote. Irrespective of the procedures followed by the State
Legislature, if the State Legislature does not choose a Senator within
thirty days after a vacancy, the Governor of the State shall select
the Senator.

SECTION SIX. This amendment shall not be so construed as to affect the
term of any Senator chosen before it becomes valid as part of the
Constitution. All state legislative proceedings, including, but not
limited to, those concerning the liaison committee, procedural issues,
and the selection and removal of a Senator are open to the public. The
electors in each State shall have the qualifications requisite for
electors of the most numerous branch of the State Legislatures.

John MacMullin (john.macmullin@cox.net) practices law in Phoenix,
Arizona and has written extensively in the law literature on the 17th
Amendment. See MacMullin J., "Amplifying the Tenth Amendment," 31
Ariz.L.R. 915 (1989).